Critical defense witnesses should be granted immunity if expected testimony meets definition of exculpatory and material as defined in Brady, and limits on government’s ability to impeach such a witness who is forced to invoke the Fifth Amendment.

Kevin Young v. United States (decided July 28, 2016).

Players: Chief Judge Washington, Associate Judge Beckwith, and Senior Judge Reid. Opinion by Judge Beckwith.  Cecily Baskir for Mr. Young.  Trial Judge: Michael Ryan. Cecily Baskir for Mr. Young. 

Facts: In October, 2012, two Metro police officers responded to a disorderly conduct call and, upon arrival, observed two men arguing. They were later identified as Mr. Young and his nephew Maurice. The officers observed a white SUV nearby with the engine running. One police officer looked inside the car and saw a belt with an empty gun holster and handcuffs in the backseat as well as two vials in the driver-side door handle. The officer then asked Mr. Young if he was a police officer, and Mr. Young said he was not but had found the items. He also said he had “just drove up.”

Mr. Young walked back to the car and the officers saw him place his hands over the two vials. At that time, the officers noticed a smell they believed was PCP. When asked what he was covering up, Mr. Young said “oils.” He was then placed under arrest. At trial, it was stipulated the two vials contained 5.6 grams of liquid PCP. 

At a pre-trial suppression hearing, both Mr. Young and Maurice testified that Mr. Young had driven the car and his nephew Maurice was the only passenger. But at trial, counsel for Mr. Young raised a Carter issue by telling the court Maurice should be granted immunity because he would testify he was the last person to drive the car and the drugs belonged to him, making him a “critical defense witness.” Counsel for Maurice proffered to the court that Maurice would testify he had driven the car but that he had no knowledge of the drugs. Maurice had also testified at a suppression hearing that he was intoxicated at the time. The court concluded Maurice had a Fifth Amendment privilege and, because his testimony would be exculpatory, asked the government to decide whether to grant Maurice immunity. Ultimately the government told the court it would for DUI but not for the charges related to the drugs and underage drinking. The government’s reason was that his testimony he was driving would be “a clear instance of perjury” that the government could not “support.”

The court then reconsidered its ruling and concluded Carter was not implicated because Maurice’s testimony would not have been “clearly” or “wholly” exculpatory. The court said Carter would only be implicated, which would require the government to grant Maurice immunity or reach some other resolution to preserve Mr. Young’s right to a fair trial, if Maurice would have testified “the drugs were mine” or “I can tell you that the drugs weren’t mine.”

Maurice testified at trial without immunity and asserted his Fifth Amendment rights when asked if he was the driver or the passenger of the car and if he put the drugs inside the car. However, he then said he did not place the drugs in the car. On cross-examination, the government introduced Maurice’s suppression hearing testimony where he said Mr. Young had driven the car. 

The jury convicted Mr. Young of both PWID and possession of liquid PCP.

Issue 1:  Did the trial court err in determining that Carter was not implicated because Maurice’s testimony would not be “clearly exculpatory”? 

Holding: Yes. The Court acknowledged that its cases have used both the term “exculpatory” and “clearly exculpatory” when laying out the test for trial courts to use under Carter. The test states that defense witness immunity is required upon a showing that: 1) the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the Fifth Amendment; and 2) the witness’s testimony will be material, exculpatory and not cumulative and is not obtainable from any other source. Carter v. United States, 684 A.2d 331, 340 (D.C. 1996). Because Carter emphasized that its rule “emanates from settled law that the government has a constitutional duty to volunteer exculpatory evidence to a criminal defendant,” citing cases that involve application of the Brady doctrine, the Court concluded that “exculpatory” in the Carter standard means the same thing as in the Brady context. Exculpatory evidence under Brady is evidence that “tends substantively to negate guilt.” As a result, the proffered testimony here was favorable to Mr. Young, and thus exculpatory because “it established that another person was the most recent occupant of the driver’s seat where the drugs were found and thus increased the likelihood that the drugs did not belong to Mr. Young.” Nothing more was required.

Next, the Court decided whether the government was “reasonable” in refusing to grant Maurice immunity because it believed he intended to clearly perjure himself at Mr. Young’s trial. In Carter, the Court stated that “a threat of a blatant perjury . . . may sometimes be so apparent as to be demonstrable to the trial judge [that] the government could not reasonably be expected to cloak in advance such testimony with immunity.” But in this case, the Court did not agree with the government that Maurice’s proffered trial testimony would constitute perjury. Even though Maurice’s proffered trial testimony would have been contrary to his testimony at the suppression hearing, he could have offered a “plausible explanation for the discrepancy, and it is not at all obvious that Maurice’s proposed trial testimony was the untrue account.” 

Further, consistent with Carter’s purpose of balancing the defendant’s Sixth Amendment right and the witness’s Fifth Amendment right, the question whether denial of immunity is reasonable relies in part on “whether there will be a distortion of the fact-finding process” should the government deny immunity.” Here, because the government introduced Maurice’s suppression hearing testimony after he had invoked his Fifth Amendment in response to questions asking if he was driving the car, there may have been such a distortion. The introduction of his suppression hearing testimony “distorted” the case because it allowed the jury to hear one version, his suppression hearing testimony, while never hearing the other version. The Court stated that while “[t]he Carter process was designed to alleviate this tension between Maurice’s and Mr. Young’s constitutional rights,” the government’s refusal to grant Maurice immunity and then presenting the jury with his previous statements after he had invoked his privilege actually “exacerbated this tension.” 

However, the Court affirmed Mr. Young’s conviction, finding Maurice’s testimony would not have been “material.” Carter, applying the Brady doctrine, requires that the proffered testimony be both exculpatory and material. Evidence is material if “there is a reasonable probability that  . . . the result of the trial would have been different” had the evidence been presented. Even had Maurice testified he was the driver of the car, the government presented “considerable evidence” of Mr. Young’s ability and intent to exercise dominion and control over the drugs: 1) he was riding in a car that smelled of PCP; 2) he attempted to cover up the PCP when the door was opened in front of the police officers; and 3) he asserted, incorrectly, that the vials contained “oils.” 

Issue 2: Was the evidence sufficient to convict Mr. Young of PWID?

Holding 2: Yes. The Court concluded there was sufficient evidence to support the element of PWID requiring proof beyond a reasonable doubt of Mr. Young’s intent to distribute. Though he possessed a very small amount of PCP, it was contained in two half-ounce glass vials that were each a quarter full. The government presented expert testimony that half-ounce vials are “usually” purchased by street dealers who “take the vials and stand ‘in an open air market,’ where they can . . . distribut[e] the liquid to customers who dip cigarettes in the PCP solution and smoke them.” The expert opined that the vials in this case were “identical” to the half-ounce vials which a street dealer purchases. As a result, even though the relatively small amount could have been consistent with personal use, the evidence was sufficient to prove the drugs were for sale “when their packaging is suited for distribution.” 

Of Note:

• The opinion has several important holdings for future cases involving Carter and requests for the government to grant immunity to a “critical defense witness.”

• First, the opinion makes clear that the government cannot refuse to grant a “critical defense witness” immunity simply because they expect the witness to contradict previous testimony. The Court said it must be “obvious that [the witness’s] proposed trial testimony was the untrue account.”

• Second, Carter does not require a heightened standard for showing the expected testimony would be “exculpatory.” It does not have to be testimony, as the trial court here believed, that would “wholly” exonerate the defendant. Instead, the Court states that the standard in the Carter context is the same as in Brady: the proffered testimony need only tend substantively to negate guilt.

• And third, in the event the government refuses to grant immunity, it cannot be allowed to then introduce prior statements to impeach the witness if it is only to impeach the witness invoking his privilege against self incrimination. Such a scenario will result in a “distortion of the fact-finding process,” which is what Carter was designed to prevent. If such a situation is to occur, the argument to the trial court should be that the government must either 1) grant the witness immunity or 2) not present the jury with the prior statements for the purpose to impeach the witness who has invoked the privilege. BM

Read full opinion here.

Offenses committed while on release? Better to stipulate now than try to fix it later.

Raymond O. Washington v. United States (decided August 13, 2015).

Players:  Associate Judges Fisher and McLeese, Senior Judge Reid.  Opinion by Judge Reid.  Deborah A. Persico for Mr. Washington.  Trial judge: Herbert B. Dixon. 

Facts:  Mr. Washington was prosecuted for his role in facilitating a drug transaction between an undercover officer and a man in a Miami Dolphins jersey.  His indictment charged Possession of Liquid PCP, Possession with Intent to Distribute (PWID) PCP, Distribution of PCP, and a violation of D.C. Code § 23-1328, for committing the offenses while on pretrial release.  Prior to trial, the parties discussed the possibility of a stipulation regarding the fact that Mr. Washington was on release status, but eventually the defense lawyer indicated a willingness to “go forward without the stipulation” and the prosecutor told the court that the parties had not reached agreement on a stipulation.   The trial judge instructed the jury on the elements of an offense committed while on release and gave a limiting instruction after the evidence regarding Mr. Washington’s release status was introduced.  Mr. Washington was convicted on all counts.  

Issue 1:  Whether admission of the evidence regarding Mr. Washington’s release status was plain error.

Holding:  The Court held that because defense counsel refused to stipulate about the pretrial release status, it was not plain error for the court to admit the testimony.  The Court recognized that D.C. Code § 23-1328 describes a sentencing enhancement, as previously held in Eady v. United States, 44 A.3d 257 (D.C. 2012), and did not decide the question whether pretrial release status need be proven to a jury under Apprendi v. New Jersey, 530 U.S. 466 (2000).  It concluded, however, that it was not plain or obvious error for the trial court to believe it appropriate to do so.  The Court went on to say that even assuming that it was a plain error that seriously affected Mr. Washington’s rights, it would not exercise its discretion to reverse under prong four of the plain error test given the compelling evidence of Mr. Washington’s guilt and his opportunity to stipulate about his release status at trial. 

Issue 2:  Whether trial counsel’s failure to object to the admission of the evidence constituted ineffective assistance of counsel.

Holding:  The Court indicated that it would not address the ineffectiveness claim on appeal, noting its preference that such an issue be litigated in the first instance in the trial court by a motion filed pursuant to D.C. Code § 23-110.

Issue 3:  Whether the Possession of PCP count merged with the PWID PCP.

Holding:  The government did not oppose vacating the Possession-of-Liquid PCP count, in response to appellant’s claim that it merged with PWID PCP, and the Court held that the two counts merge. 

Issue 4:  Whether the PWID PCP count merged with the Distribution count.

Holding:  The Court held that Mr. Washington properly stood convicted of PWID PCP as well as Distribution of PCP, because the man in the Miami Dolphins jersey had more PCP in his possession after the charged sale and the evidence supported a conclusion that Mr. Washington knowingly associated himself with the criminal venture that would involve future sales of the PCP.  

Of Note:

• In footnote 2, the Court notes that the government “acknowledges” that Mr. Washington was “incorrectly indicted, and subsequently convicted, ‘of offenses committed during release.’”  Presumably, the government had mistakenly indicted the D.C. Code § 23-1328 violation as a separate offense, rather than as a sentencing enhancement attached to three indicted counts.  The government’s “acknowledgment” is a bit odd, as it appears that the issue was not raised by appellant on appeal.  Furthermore, as a remedy, the Court vacates the conviction on the “incorrectly indicted charge of offenses committed during release,” and directs the trial judge to “add a separate consecutive sentence to each underlying conviction.”  This most unusual remedy of adding sentences at the government’s request does not appear to have been contested by appellant or litigated during the appeal – perhaps because Mr. Washington received concurrent sentences for the underlying charges and a resentencing likely would have no practical impact for him.  Were such an issue to arise in another case in which the client were at risk of receiving an enhanced sentence, counsel would want to consider challenging the right of the Court to direct that additional sentences be imposed.    

• The Court held that possession of liquid PCP merges with PWID PCP – an issue the government did not challenge, but did not expressly concede, probably because the possession offense specifies “liquid” PCP, while the PWID charge does not.  JF

Read full opinion here.